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If you are facing a dispute and do not wish to go to court, you may be wondering whether expert determination is right for resolving the problem. Expert determination is an informal process that can be used to resolve many different types of disputes, such as disputes relating to:

  • construction;
  • industry issues;
  • accounting; and 
  • share valuations. 

When you are in dispute with another party, you can mutually decide to allow an independent expert to make a determination on your behalf. The expert’s determination will be binding unless you and the other party agree otherwise. This article will explain the key questions you should consider when determining if expert determination is right for resolving your dispute. 

Do Both Parties Agree?

Unlike court proceedings, expert determination can only take place if you and the other party agree to it. You might use expert determination to resolve your dispute if: 

  • there is a clause in the contract that outlines the process of resolving the dispute involving expert determination; or
  • you and the other party write a submission agreement (i.e. a document setting out the details of the dispute you wish to resolve) and refer this to the person who will make the expert determination. 

Once you have completed the expert determination process, the expert’s decision will be legally binding unless you and the other party agree to disregard it.

Before starting the process, you must agree on: 

  • the scope of the dispute; 
  • deadlines for submissions; and 
  • who the expert will be. 

This requires a significant amount of communication prior to the determination. For this reason, if the relationship between you and the other party has completely broken down it is unlikely that you will be able to resolve your dispute with expert determination. 

Fast and Flexible

Expert determination is much more informal than court proceedings. This means that you can generally avoid the delays and expenses that come with court proceedings. You can also decide beforehand to only resolve one element of the dispute. 

For example, if you are a developer in a dispute with the building company about whether they are complying with the scope of work, you may choose to resolve a smaller part of the dispute with an expert. If the dispute is about window sizes and whether delays in building are justified, the expert could make a decision on the window sizes and the issues with delays could be resolved elsewhere.

You also decide when the determination will take place and the deadlines for submissions. This means that the process takes place on your terms. 

The expert is not bound to base their decision solely on the facts each party presents. Where appropriate, an expert can use their personal observations and experiences to resolve the dispute.

However, the speed of the determination also means that there is no cross-examination and therefore no ability to test evidence. This may pose some challenges. If there is an error in the determination, you usually do not have the right to appeal the decision.

The Decision is Confidential

The expert you engage will be a neutral third party with experience in the subject matter up for dispute. In court proceedings based on technical issues, experts may be called upon to give evidence. However, this evidence will then go on the public record. By allowing the expert to resolve the dispute in a confidential setting, expert determination is a way to resolve issues privately. 

Key Takeaways

Expert determination may be a fast, efficient and cost-effective way to resolve your dispute. Whether expert determination is right for your dispute will depend on several factors. You should consider:

  • whether your dispute requires expert knowledge of complex issues; and
  • the state of your relationship with the other party in the dispute.

You should also consider adding an expert determination clause to your contract. If you need assistance with drafting an expert determination clause or have questions about a dispute, contact LegalVision’s dispute resolution lawyers on 1300 544 755 or fill out the form on this page. 

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